Strand Art Theatre, Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1970

184 N.L.R.B. 667 (N.L.R.B. 1970)

STRAND ART THEATRE, INC. 667
Strand Art Theatre , Inc. and American Guild of
Variety Artists, AFL-CIO , Kansas City Branch.
Case 17-CA-3773
July 28, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On December 1., 1969, Trial Examiner Alba B.
Martin issued his Decision in the above-entitled
proceeding , finding that Respondent had engaged
in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Decision.
Thereafter Respondent filed exceptions to the Trial
Examiner 's Decision and a brief in support of the
exceptions . The General Counsel filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the
Trial Examiner 's Decision , the exceptions, the
briefs, and the entire record in this proceeding, and
finds merit in Respondent 's exceptions. Ac-
cordingly , the Board has decided to dismiss the
complaint.
The Trial Examiner found that Mr. and Mrs.
Tackett, the alleged discriminatees, were em-
ployees of Respondent and that Respondent
discharged them in violation of Section 8(a)(3) and
(1) of the Act for pressing a grievance through the
Union . Respondent contends that the Tacketts
were independent contractors and not employees
and that , in any event , the discharges were for law-
ful reasons . We do not reach a determination as to
the cause of discharge because we find merit in
Respondent 's contention that Mr . and Tackett were
not employees of Respondent within the meaning
of Section 2(3) of the Act.'
Mr. and Mrs . Tackett are entertainers . They are
billed as Buddy O'Day, a comic, and Tootsie Roll,
an exotic dancer . They had been performing at
Respondent 's Strand Art Theatre in Kansas City,
Missouri, at the time of their discharge . They ob-
tained the engagement through an agent.
The Tacketts signed separate contracts entitled,
"AGVA Standard Form of Artists Engagement
Contract ." Each contract designated the parties as
"artist " and "operator ." The Tacketts ' agent's
signature also appeared on the contract , and the
Union's representative signified his approval of it.
The separate contracts provided that the Opera-
tor "engages the Artist and the Artist hereby ac-
cepts said engagement , to present his act under the
direction , supervision and control of the Operator .
... The term was for 4 weeks with 30 weekly
shows at $175 a week . The contract provided that
the artist was to render his act exclusively for the
operator unless the operator consented to other en-
gagements . The operator had the option to extend
the agreement . He could also terminate it on 2
weeks' notice.
Under the contract the operator agreed to
furnish musical accompaniment. The contract
required the artist to be an AGVA member and
authorized deductions of membership sums. The
operator agreed to contribute to the Union's wel-
fare trust funds.
Provisions added to the standard contract by
the parties provided for rehearsal at noon on open-
ing day, 2 weeks' vacation without pay for the
artists, and 5-percent commission to Consoli-
dated Orchestras of America, the agency that
obtained the engagement.
The Tacketts first performed under the 4-week
contract . Respondent exercised its option to extend
the agreement for several 4-week periods and three
times for 26-week periods. Respondent exercised
its last option in May 1968. Thus the Tacketts had
performed at Respondent 's theatre from December
1966 to August 1968, when Respondent discharged
them . In that period they were absent 4 weeks for
an engagement elsewhere with a different theatre
owner and another 2 weeks for a vacation.
Mr. Tackett created the acts for himself and his
wife. He had many acts and changed them each
week . He produced scenes to fit the size and cast of
the theatre and requested props, cues, and lights
from the operator for the scenes . The Tacketts sup-
plied their own costumes, makeup , and some props.
The acts were part of the entertainment , which in-
cluded others, in a stage show and motion pictures.
The Tacketts performed several times a day, and
Mr. Tackett sometimes acted as the master of
ceremonies.
Mr. Tackett testified that how the act was to be
performed was up to him. There is no evidence that
he or his wife ever received directions on how to
perform the act from Respondent's officials.
1 "(3) The term employee shall include any employee but shall not
include any individual having the status of an independent contractor
184 NLRB No. 72
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bertram Ross, who was in charge of the theatre in
the absence of his manager father , gave instructions
as to the length of a number , but not its content,
and as to suitability of costumes . He also deter-
mined the number of scenes and whether Mr.
Tackett would act as master of ceremonies , but this
seldom varied.
Respondent did not withhold income taxes from
the Tackett's salaries or pay social security or
unemployment compensation taxes on their behalf.
The Trial Examiner concluded that the Tackett's
were Respondent 's "employees ." He relied on
these factors : the Tacketts ' tenure, the exclusive
nature of the contract , the provision giving the
operator control of the entertainer 's act, the opera-
tor's exercise of such control , and the fact that Mr.
Tackett made some of his props.
Respondent contends that the Tacketts were in-
dependent contractors in their relationship with
Respondent . We agree.
Of all the factors enumerated by the Trial Ex-
aminer , the most important is the right to control
the manner and means of performing the work. In
our opinion, the following factors establish that the
Tacketts had the right to control the manner and
means of performing their work . Mr. Tackett alone
wrote the material for the scenes performed by
him, his wife, and supporting cast. He adapted the
scenes to stage size and to the personnel in the
stage show. The manner of entertaining the au-
dience was the sole responsibility of the Tacketts.
The only direction they ever received related to
length and number of scenes and to the scantiness
of a costume as measured by local regulations.
Apart from supplying the theatre stage , music, and
lights, Respondent played no part in the Tacketts'
performance.
A similar question , whether entertainers are em-
ployees or independent contractors, was present in
Radio City Music Hall Corp. v. United States, 135
F.2d 715 (C.A. 2), where the court held that enter-
tainers who contracted for a limited period to
present their own "vaudeville " acts were indepen-
dent contractors rather than employees . In that
case, as here, the theatre presented a motion pic-
ture and a stage show . The theatre had a permanent
group of entertainers in a supporting role-orches-
tra, glee club, and ballet corp-who were concede-
ly employees. A second, disputed, group were
"vaudeville acts," including performing animals,
acrobats , comedians , singers, dancers, jugglers,
ventriloquists , and others . They were engaged on a
weekly basis and their pay varied from $50 to $900
per week. The facts as found by the court were:
Generally [ the producer] negotiated the con-
tract with the actor through the actor 's agent;
sometimes the actors dealt with him them-
selves ... if [the producer] had never seen the
"act" he ordinarily required an "audition." To
fit the "act " into the program he would some-
times cut it down and have the actor piece
together what remained . Sometimes it was
necessary for the actor to put something in the
place of what was cut out , but [the producer]
never attempted to say what it should be. He
did indeed at times depart from this in the case
of music, the actor being compelled to
rehearse the new pieces for an hour or two ...
or when on occasion he put a song of his own
choosing into a singer 's repertory . At times he
would also reduce or amplify the volume of a
singer 's voice . The plaintiff [ theatre] furnished
the stage , scenery, lighting , orchestral music
and attendants ; sometimes it supplied a
costume for one of the "acts ." The producer
directed the staging according to his require-
ments, fixed the times for the rehearsals, the
number of performances in a day, required
promptness in attendance , and prescribed the
order of the songs and dances . He determined
the time at which the "act" should appear on
the stage , and sometimes insisted on leaving
out parts of the dialogue or other features
when he thought them unsuitable for the plain-
tiff's audience. His effort was to weld the dif-
ferent "acts" together into a harmonious pro-
gram , but always giving each actor his opportu-
nity to perform without interference. Some-
time he made an "act" part of a playlet, and
then the actor might be required to mingle
with the chorus and put on a costume con-
gruent with the scene and with those of the
other actors . [ 135 F. 2d at 717.]
Judge Learned Hand , writing the opinion for the
court , observed , "The test [ as to the distinction
between an employee and an independent contrac-
tor] lies in the degree to which the principal may
intervene to control the details of the agent's per-
formance ; and that in the end =- all that can be said
" He concluded:
In the case at bar the plaintiff did intervene to
some degree; but so does a general building
contractor intervene in the work of his subcon-
tractors . He decides how the different parts of
the work must be timed, and how they shall be
fitted together; if he finds it desirable to cut
out this or that from the specifications, he does
so. Some such supervision is inherent in any
joint undertaking , and does not make the con-
tributing contractors employees. By far the
greater part of [the producer's] intervention in
the "acts" was no more than this. It is true, as
STRAND ART THEATRE, INC.
we have shown , that to a very limited extent he
went further, but these interventions were trivi-
al in amount and in character ; certainly not
enough to color the whole relation . [ 135 F.2d
at 718.]
The vaudeville artists in the Radio City case were
much less on their own than the actors in the sub-
ject case in that the producer in Radio City some-
times cut out parts of an act, added songs of his
own choosing , supplied a costume as needed, and
directed the staging so as "to weld the different
`acts' together into a harmonious program . . . ."
The court held, however , that these interventions
did not make the actors "employees " because the
actors performed without the producer 's inter-
ference.2
The Board reached a like conclusion in American
Guild of Musical Artists, AFL-CIO, 157 NLRB 735,
in which it held that the two principal dancers who
contracted to dance in a ballet produced jointly by
a ballet school and a symphony orchestra were in-
dependent contractors. The ballet dancers were less
independent than the actors in the subject case in
that they performed their roles as part of a large
unified ballet production . Like the Tacketts, they
supplied their own costumes and makeup. The
symphony , like Respondent here, supplied only the
hall and the music . In both cases no deductions
were made for Federal income and social security
taxes . These factors , but particularly the fact that
the symphony and ballet school "retained and exer-
cised little , if any, control or supervision over the
manner in which [the two dancers ] danced their
roles in rehearsals and in the performance," were
relied on by the Board in finding that the artists
were independent contractors.3
In view of the strong evidence herein establishing
that the Tacketts controlled the manner and means
of performing their work we conclude that the
Tacketts were independent contractors.
We shall therefore dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER MCCULLOCH, dissenting:
For the reasons stated in the Trial Examiner's
Decision , I would adopt the findings and conclu-
sions therein , that Mr . and Mrs . Tackett were em-
ployees of Respondent and that Respondent vio-
lated Section 8(a)(3) and ( 1) by discharging them
for pressing a grievance . I would therefore order
669
the discriminatees reinstated and make them whole
for loss of earnings by ordering backpay for the
contract term.
2Cf Ringling Bros -Barnum & Bailey Combined Shows, Inc v Higgins,
189 F 2d 865 (C A 2), and Club Hubba Hubba v United States, 239
F Supp 324 (D Hawaii), in which courts found an employment relation-
ship because of management's tight control over the performers
' The form contract language in the subject case, giving the operator
control over the artist's act, did not reflect the day-to-day relationship of
the parties As shown above, Respondent did not, and as a practical matter
could not, exercise control over the manner of the Tacketts' performance
In these circumstances we do not regard the contract recital as controlling
our determination of the parties' relationship
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALBA B. MARTIN, Trial Examiner: With Respon-
dent and the General Counsel represented by coun-
sel, this proceeding was heard in Kansas City, Mis-
souri, on July 22 and 23, 1969, on complaint of the
General Counsel of the National Labor Relations
Board and answer of Strand Art Theatre, Inc.,
herein called Respondent. The issues litigated were
whether the Board has jurisdiction herein, whether
William F. Tackett and his wife, Jerrolyn Tackett,
were employees or independent contractors, and
whether Respondent's discharge of Mr. and Mrs.
Tackett on August 1, 1968, was lawful or in viola-
tion of Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended, 29 U.S.C. Sec.
151, et seq., herein called the Act. After the hearing
the General Counsel and Respondent filed helpful
briefs, which have been carefully considered.
Thereafter Respondent filed a request for leave to
file a reply brief. This request is hereby denied
because the Board's Rules do not provide for reply
briefs at this stage in a proceeding and because
there appears to be no real need to depart from
customary practice in this instance.
Upon the entire record and my observation of
the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE JURISDICTION QUESTION
Respondent challenges the Board's jurisdiction
over this proceeding. The General Counsel con-
tends that the combined business operations of
several corporations doing a gross annual business
of over $500,000 satisfies the Board's standard for
retail enterprises by virtue of the fact that the
several corporations constitute a single integrated
enterprise. The General Counsel contends it is a
single integrated enterprise because of common
owners, directors, officers, and management of the
several corporations.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The Corporation and Volume of Business
1. The business of the corporation, Strand Art
Theatre , Inc., includes the operation of the Strand
Art Theatre in Kansas City, Missouri , herein called
the Strand , the apartment rentals of the Strand Art
Theatre building in Kansas City, the operation of
the Vogue Art Theatre in Wichita , Kansas, herein
called the Vogue , and certain business rental por-
tions of the Stockyards Hotel in Kansas City. Dur-
ing calendar year 1968 this corporation did a gross
volume of business totalling $407,974. During the
first half of calendar year 1969 its gross was
$22,918. This corporation's president and sole
owner is Dorothy Ross and its directors are
Dorothy Ross and Charles Orr, an attorney.
Dorothy Ross is the wife of Edward Ross. On the
witness stand Edward Ross identified himself as
general manager of the corporation, and later as
general manager of the Strand Art Theatre. On
Strand Art Theatre stationery his name appears as
managing director.
2. Ross Operating Company, a corporation,
operates and receives rent from the Stockyards
Hotel , the Monroe Hotel , and the Bluebird Motel,
all in Kansas City, Missouri . During the calendar
year 1968' this corporation 's gross volume of busi-
ness totalled $49,387. During the first half of 1969
its gross was $24 ,287. Dorothy Ross is president
and sole owner of this corporation also, and its
directors are Dorothy Ross and Charles Orr.
3. Lakeside Drive-In Theatre, Inc., incorporated
in or about December 1968, has, since March 5,
1969, operated the Lakeside Drive -In Theatre in
Kansas City. This corporation is owned by Edward
Ross and Paul Rosenbaum . The incorporators were
Edward Ross, Dorothy Ross, and Bertram Ross.
The officers are: Edward Ross, president; Paul
Rosenbaum , vice president and treasurer ; and Sher-
win Epstein (an attorney ), secretary . Its gross
volume of business from March 1 to June 30, 1969,
amounted to $60,497.
4. Town Underground Theatre of Chicago, Il-
linois, is a separate corporation. The gross volume
of business of this theatre during calendar year
1968 was $460,234 . Its gross during the first half of
1969 was $326,010. The only testimony concerning
the corporation 's ownership was Edward Ross' "be-
lief" that it was owned by Robert Hubey (or
Hovey), its president, and by "Griffin and Jerry
Voss." M. L. Griffin is the accountant for all the
corporations involved herein, and is the only Griffin
specifically identified in the record. He was hired as
accountant for all the corporations by Edward
Ross. Upon this evidence and the entire record, and
as by his demeanor and his shifting answers Edward
Ross impressed me as something less than a
completely credible witness , I do not credit his
testimony that the three owners of Town Un-
derground Theatre are in no way connected with
Strand Art Theatre, Inc.; and I find that the Griffin
who is part owner of Town is also accountant for
the other corporations . Edward Ross, herein called
Ross, is general manager of Town Underground
Theatre. Also he is apparently the beneficial owner
of the building in Chicago which houses this
theatre. At first he testified he owns the building.
Then he testified he owns it under a trust of which
"I am the beneficiary ." Ross testified that he thinks
he used to receive $2,000 a month rental from his
ownership of this building and he now receives
$3,000 a month "against a percentage."
B. Interlaced Ownership and Management and
Conclusions
The key to the jurisdictional question is the inter-
laced ownership and/or management of the four
corporations by the Ross family. Edward Ross, the
head of the family, is president of Lakeside Drive-
In Theatre, Inc., and one of its incorporators;
managing director or general manager, as the
record reveals, of Strand Art Theatre, Inc.;' and
general manager of, and beneficial owner of the
building which houses, Town Underground
Theatre. In addition, although he testified he had
nothing to do with Ross Operating Company, he
hired , some 4 years ago , the present manager of the
Bluebird Motel and told her what her duties would
be. Thus he holds dominant positions in three of
the corporations and hired the manager of one of
the components of the fourth.
Mrs. Dorothy Ross is president and sole owner of
two of the corporations , and signs the paychecks
for the employees of those corporations. In addition
she was an incorporator of Lakeside Drive-In
Theatre, Inc., and she signs the paychecks for the
employees of its theatre, the Lakeside Drive-In
Theatre. Thus she is closely connected with three
of the corporations.
' The stipulation on this point shows in the record as "for calendar year
1967-68 " This is followed by the figure for the first half of 1969 The
stipulations lust before this related to Strand Art Theatre, Inc 's business
for calendar year 1968 and the first half of 1969 In his brief the General
Counsel interpreted "for calendar year 1967-68" as referring to calendar
year 1968 It is probable that as the General Counsel was phrasing the
stipulation at the hearing he misspoke when he said "1967" and corrected
himself by saying -68 -
' It is clear that Edward Ross' authority extends beyond the Strand Art
Theatre, and that he is general manager of Strand Art Theatre, Inc The
record showed that he sent his son, Rueben Ross, to work at the Vogue Art
Theatre in Wichita twice, and the second time he made him manager of the
Vogue
STRAND ART
In addition three of the sons of Mr. and Mrs.
Ross are active in the management of the three cor-
porations which operate in Kansas City and
Wichita, particularly the two older sons, Bertram,
age 22, and Joel, age 21. Bertram and Joel are both
active in the management of the Strand. Either one
is in charge there in the absence of their father.
Each of them has the title of manager of the
theatre. Also each of them has, one at a time, been
manager of the Lakeside Drive-In Theatre since its
opening in March 1969. When he was manager of
both Strand and Lakeside Bertram received two
paychecks, one from each corporation. In addition
6 months ago Bertram promoted to "manager" the
present "manager " of the Monroe Hotel and told
him that if he had any trouble he should call
Bertram and the latter would help him out. Joel
goes up to that hotel sometimes several times a
week, "looks around to see how everything is and
asks how everything is going ." The "manager" of
the hotel calls Bertram or Joel at the Strand if he
has any questions about repairs to the building. Joel
customarily takes the paychecks out to the Monroe
and the Bluebird.
The "manager" of the Monroe Hotel, who also
runs the elevator, and the manager of the Bluebird
Motel, who is also the room clerk, have nothing to
do with setting the wages of the maids and
any other employees at those hotelries. The
"manager" of the Monroe Hotel testified that he
supposes Edward Ross owns the hotel and sets
wages, that if he wanted to pay employees more
money he would ask Edward Ross "or somebody, I
don't know who." The manager of the Bluebird
Motel testified that she supposed the Ross family
set wage rates.
The Strand, the Vogue, and the Town Un-
derground theatres show "adult" films, open only
to those over 18 years of age. The Lakeside shows
"adult" films and also general films. Edward Ross
obtains the films for the Strand, the Vogue, and the
Lakeside theatres. The manager in Chicago obtains
the films for the Town Underground Theatre.
Edward Ross testified that as general manager of
the Strand he sees that "the theatre makes a
profit." He testified that as general manager of the
Town Underground Theatre "I see that everything
goes quietly. We make money, that is my real duty,
to see we make money." When he is in Chicago he
"see(s ) that everything is going right, see(s) the
receipts are in, see(s ) there are proper help, just
general supervision."
From his appearance, presence, and bearing, and
upon the preponderance of the evidence in the en-
THEATRE, INC. 671
tire record, it is clear to me that Edward Ross is a
person of strong and powerful character, and that
without question he is the "boss" of all four of the
corporations and their several enterprises. As his
wife is ill and not very active in the business enter-
prises, the real managerial authority for all the en-
terprises resides in Mr . Ross . Clearly his sons look
to him as the boss, and so did William F. Tackett,
whose discharge from the Strand Theatre is in issue
herein . Tackett credibly testified that he did not
know what Edward Ross' official position with the
Strand was, but that "all I know is everybody fears
him, he is the boss, including me." Looking at Ross
in the hearing room, Tackett added, "Mr. Ross, you
scare me." Although Ross testified that the
manager he hired to run the Town Underground
Theatre runs it autonomously with no help from
Ross, it is clear on this record that Ross holds the
residual power to enforce his will if the manager in
Chicago does anything to displease him in the
running of that theatre.
Conclusions
The four corporations have as their business pur-
poses the providing of entertainment and the rental
of rooms and office space. All four of the theatres
run by the three corporations have a common busi-
ness purpose-the showing of "adult" movies. All
four corporations are under the managerial
domination or potential domination of Edward
Ross, who is also president of one of them. In addi-
tion, as has been seen, other members of the Ross
family are either president of the other two cor-
porations operating in Missouri and Kansas or ac-
tive in the management of them. The four corpora-
tions have a common accountant, Griffin, who was
hired as accountant for all of them by Edward Ross,
and who has control of the books and records of all
four corporations. In addition Griffin is co-owner of
one of the corporations. In view of the interlaced,
intertwined officerships, directorships, manage-
mentships, and ownerships of various members of
the family and Griffin, under the actual or potential
domination of the head of the family, Edward Ross,
I find and hold that the four corporations are a sin-
gle integrated enterprise for the purpose of the
Board's jurisdiction.
The combined business operations of the three
corporations in existence in 1968 grossed for that
calendar year in excess of $800,000, far in excess
of the Board's $500,000 standard for retail enter-
prises. If Town Underground Theartre were to be
excluded, the combined business operations of the
other three corporations for the first half of 1969
grossed $307,702. Projected to a yearly basis, this
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would amount to $615,404 for the current year.3
Upon the above facts and considerations I find
that the Board has jurisdiction over this proceeding
and that it will effectuate the policies and
procedures of the Act for the Board to assert its ju-
risdiction.
II. THE LABOR ORGANIZATION
American Guild of Variety Artists, AFL-CIO,
Kansas City Branch , the Charging Party herein, is a
labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Employees or Independent Contractors?
William F . Tackett and his wife, Jerrolyn
Tackett, worked for Respondent Strand Art
Theatre, Inc., for 4 weeks in December 1966, and
from January 1967 until their discharge on July 25,
effective August 1, 1968 . The first question is
whether they worked as employees or as indepen-
dent contractors.
Tackett was an entertainer billed as a comedian.
Mrs. Tackett, his partner, identified herself as an
exotic dancer , a stripper , and said that in the bur-
lesque business she is also called a talking woman
and a straight woman . They gave individual and
joint acts . They are members of the Charging Party
herein , the American Guild of Variety Artists (AG-
VA), and they worked under written contracts with
Dorothy Ross on AGVA's standard form contract.
At first they signed for several 4-week periods, and
then they signed three times for 26-week periods.
When Bertram Ross first asked them to sign for 26
weeks, he said , "We like you , you can stay for-
ever ." The last 26-week contract was executed
about May 31, 1968.
Elements in the employment relationship point-
ing toward the status of independent contractors
were the facts that Respondent did not withhold
any income tax, social security tax, or unemploy-
ment compensation tax from the Tacketts'
paychecks . The Tacketts supplied their own
costumes and makeup and created the burlesque
scenes they put on.
Other aspects of the relationship between
Respondent and the Tacketts pointed toward their
status as being that of employees . Among these
aspects are the following:
1. Their long tenure , and the fact that for three
successive half-year periods the Tacketts were not
free to work for others than the Rosses . Their con-
tracts to perform at the Strand promised that "the
Artist shall render his Act in the variety field exclu-
sively to the Operator ... unless otherwise pro-
vided herein or otherwise consented to by the
Operator in writing."
2. Their contracts provided that each of the
Tacketts "accepts said engagement to present his
act under the direction , supervision , and control of
the Operator."
3. Uncontradicted and substantiated testimony
proved that in fact the Tacketts worked under the
"direction , supervision , and control" of the manag-
ing members of the Ross family . The latter deter-
mined on what stage the Tacketts would perform,
how many performances they would give per day,
whether there would be a midnight show, what
times their acts would go on, and how long they
would last . Bertram Ross would tell Tackett
whether he was to serve as master of ceremonies.
4. The Tacketts were , in addition to being a
devoted married couple, partners engaged in the
profession of entertaining people . As Tackett
testified : "My profession is to make people happy .
..." They had no business , no place of business, no
employees . They made no profit on the work of
anyone working under them . In essence they were
engaged in rendering services , and they rendered
them when and where Respondent instructed them
to do so.
5. The stage of the Strand was too small for the
storage of the stage props , which therefore had to
be lifted up and onto the stage at change -of-scene
times . Because of their weight it was impossible to
lift up ordinary furniture and put it in place during
the time available. So Tackett , who was handy with
tools, made many lightweight props out of beaver
board and one-by-ones, including a judge 's bench,
counters , a desk, tables, and fireplaces. As these
props were especially designed and made for this
stage, it is a fair assumption that when he made
them Tackett intended them to remain there and
become a part of the backstage equipment of the
theatre . ( Tackett 's testimony showed that, by con-
trast , he also worked on "something of my own.")
The act of making these props with this intent, with
no additional pay for his services insofar as the
record revealed , appears to me to have been more
' The Board 's jurisdiction criteria may be satisfied by projecting or esti-
mating commerce data for an appropriate annual period Building and Con-
struction Trades Council of San Bernardino , 139 NLRB 1370, 1372 The
Board frequently looks to the 12-month period immediately preceding the
hearing Whippany Motor Co, Inc, 115 NLRB 52, 53, International Hod
Carriers , 150 NLRB 158 , 170, Hobb-Parsons Co, 128 NLRB 1031, 1032
Business operations subsequent to the unfair labor practices (such as those
of Lakeside Drive-In Theatre, Inc ) are properly included in asserting ju-
risdiction Glen Koennecke , dlbla Sunset Lumber Products, 113 NLRB
1172, Cadillac Marine & Boat Company , 115 NLRB 107 , Calera Mining
Company, 97 NLRB 950, National Gas Company , 99 NLRB 273
STRAND ART THEATRE, INC. 673
an act of an employee than an act of an indepen-
dent contractor.
6. The record showed that under the "right of
control" test" the Ross family retained the right to
control the manner and means by which the
Tacketts should entertain the audience.
a. Management instructed Mrs. Tackett as to
what costumes could be removed in her " strip-
tease" dances and what cover should be worn
under the costumes , whether it should be "panties
or a G-string or a brassiere or pasties," and as to
"how far she could go, " and how long her "strip-
tease" numbers should last.5
b. Although Tackett , or Mr. and Mrs . Tackett,
wrote the skits or scenes they played , they rewrote
them and adapted them to the stage conditions of
the Strand , which included the narrow stage, a
small cast , and "no traveler ." Different chorus girls
not selected by the Tacketts were brought in each
week and management instructed the Tacketts
which girls to use in their acts . As Tackett ex-
pressed it , " We also worked with whoever the
management tells me to use in the scenes . As a bur-
lesque comedian you are required to put on scenes
to fit into situations or the cast of the threatre."
The record showed , further , that for a time late in
their employment they had to eliminate all scenes
using props , music, sound effects, and extra girls,
because of inadequate support by the person who
was to take care of those things . This was an addi-
tional instance of adapting their scenes to the con-
ditions in the theatre.
c. At least once Bertram and Joel Ross con-
fronted the Tacketts concerning the quality of their
work , which had suffered as a result of their dif-
ficulties , considered below , with Rueben Ross, a
third Ross son . This showed that the Rosses as-
sumed they had the right to control the quality of
the Tacketts ' performance.
Conclusions
In view of the Tacketts ' long, locked-in, tenure,
their commitment to serve Respondent exclusively
during their tenure , and their written and actual
subordination to the direction, supervision, and
control of Respondent ; as the Tacketts had no busi-
ness, place of business , or employees and in essence
were engaged in rendering services when and where
Respondent instructed them to; as Tackett adjusted
to the needs of Respondent 's theatre and made
stage props for it with no additional pay for his ser-
vices; as Respondent through members of the Ross
family retained the right to control the manner and
means by which the Tacketts should entertain the
audience as shown by its controlling what costumes
and undergarments should be worn in strip-tease
acts and the length of such acts, as shown by its
requiring that the Tacketts ' scenes be adapted to
and fit into situations in the theatre and the cast of
the theatre not selected by them , and as shown by
its confronting the Tacketts concerning the quality
of their work ; and upon the preponderance of the
evidence in the entire record considered as a
whole , I find and hold that the Tacketts were em-
ployees within the meaning of the Act having
"tenure of employment" within the meaning of Sec-
tion 8 ( a)(3) of the Act.
B. Discharge of the Tacketts
1. Background
In Kansas City at the time of the events herein
there were two "burlesque theatres ," the Strand,
and the Follies Theatre . According to the credited
testimony of Steve Stephens, these were the only
two "burlesque theatres " in the four States covered
by AGVA's branch office in Kansas City, and the
Follies operated "non-union."
From the beginning of and during most of the
Tacketts' tenure at the Strand, Rueben (Ruby)
Ross was a stage hand with the responsibility of
setting the props in place on stage, taking care of
the lights , tending to the tape recorder and record
music for the acts, and "catching" the wardrobe.
The proper handling and timing of the props, lights,
music, and wardrobe were of course very important
to the Tacketts ' performance , and how they were
handled was of course an important condition of
work in their employment.
When the Tacketts began working at the Strand
in 1966 Rudy Ross had just become 17 years old.
He became 18 years old in September 1967. During
much of their employment the Tacketts ' relations
with Rudy were amicable , placid , even affectionate;
but from about the summer of 1967 on the rela-
tions between them were at times cold, silent,
hostile, and stormy .6 The record established that in-
creasingly the Tacketts could not rely on Rudy for
the proper performance of his supporting duties
' See American Guild of Musical Artists , AFL-CIO ( National Symphony
Orchestra Association ), 157 NLRB 735, and cases cited in fn 9 of the Trial
Examiner 's Decision
' As the police censor the burlesque show every week, it is, presumably,
regulated by municipal ordinance However I conclude from Tackett's un-
contradicted testimony that in addition the Strand had certain regulations,
which had to be adhered to Tackett testified , " there were certain limita-
tions and certain rules there are certain rules , every theatre has dif-
ferent rules They instruct us as to these things, just how far you can go,
they instruct how long a number they want us to do and she complied and t
complied "
"Rudy Ross testified that , " When we got along we got along well, and
when we didn 't get along, we didn 't get along terribly "
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that it was this which caused the difficulties
between them . Sometimes Rudy was upstairs in his
apartment or in back of the theatre working on his
Volkswagen during shows, and sometimes even
when he was present backstage his mind was not on
his duties.
Once in the summer of 1967 Rudy used a prop, a
sheet with which Tackett covered Mrs . Tackett on-
stage , on the ground under Rudy as he worked on
his Volkswagen. When Tackett reminded Rudy that
onstage Tackett puts that sheet over Mrs. Tackett's
face, Rudy replied that " It is my theatre , my dad's
theatre, I will do what I want to with the props,"
and Rudy shoved Tackett about 2 feet across the
dressing room . Rudy was taller , much heavier, and
much younger than Tackett . The latter was 53
years old.
Once about April 1968, when Mrs . Tackett com-
plained to Rudy backstage that he was playing the
music too loud for her act , Rudy replied , " I like it
loud." When Tackett asked him to play the music
softer Rudy replied, "I'll lay you out, I 'll knock the
... out of you." Tackett looked at Rudy, ran to the
intercom , and called Joel Ross . When Joel arrived
backstage Rudy and Tackett were arguing loudly
and each had a tool in his hand . Tackett 's version
was that Rudy was trying to sic him on. Rudy told
Joel, "I'll play the music as loud as I want." Rudy
and Joel had a fight . Joel finally quieted Rudy down
by shooting tear gas at him which got into Rudy's
eyes . After this incident Rudy was removed from
backstage for a period , but he returned.
Numerous times during the long though intermit-
tent period of their struggles to get adequate
backstage assistance , Tackett discussed Rudy's
shortcomings with Bertram , Joel, Mrs. Ross, and
Edward Ross . The Rosses would say they would
straighten Rudy out . Rudy testified his parents al-
ways took the Tacketts ' side and that " it was always
my fault." Several times Bertram or Joel en-
gineered a rapprochement between Rudy and the
Tacketts and they shook hands and made up.
Several times also Steve Stephens , the AGVA
agent , discussed the problems with Bertram and
Joel.
During the last show on Friday, June 7, 1968, the
fire door behind the stage kept opening and bang-
ing shut as Rudy went out numerous times to work
on his VW. As Tackett expressed it, "A comedy is
based on timing " and with the banging doors going
on they "couldn 't time properly ." Mrs. Tackett, "in
an effort to cover," told the audience , "that's just
my janitor , he is always banging around ." After a
period of quiet the banging resumed . When Mrs.
Tackett started to speak to Rudy about it, he
shouted an obscenity loud enough to be heard all
over the theatre . Finally Tackett told the audience
that they couldn 't finish their scene, and shortly
after that concluded the entire show before it was
finished . Rudy told Tackett that he was "crazy" for
not finishing the show . It was this episode that
prompted Tackett to write a two-page grievance for
the information of AGVA's representative, dated
June 10 reading as follows:
Backstage , acting in the capacity of a
stagehand and disc jockey , is one of Mr. Ed-
ward Ross 's (owner of Strand Theatre, K.C.
MO.) sons a Mr. Rueben Ross , ( age 18).
Rueben Ross is very inefficient . He will not set
props in proper position on stage for scenes.,
he plays background music and sound effects
too loud or too soft as his fancy suits him. He
misses light cues , music cues , sight cues, and
sound effects . He leaves his job backstage to
go up to his apartment on the third floor or
goes outside and fixes his car in the middle of a
show.
The general manager , Bertram Ross, ( also son
of Edward Ross) instructed his brother,
Rueben, not to worry about the positions of
the girls in the show ( the line up). Bertram also
stated the comedy scenes were more important
than the feature spot. He also told Rudy there
are no " stars." Rudy ignores what Bertram
tells him and places girls where he chooses,
quite often leaving the girl available for scene
the girl that is not capable of doing them. She
is inefficient in acting or speaking.
When you mention any of the above inefficien-
cies to Rudy he is arrogant to the point of
being a physical bully. His reply usually is "I
am Rudy Ross and I don't have to."
Naturally, all this detracts from the quality of
the show . I have in my repertoire 62 burlesque
scenes adaptable to the stage conditions of this
theatre . Many of these scenes are five and six
people cast scenes and my wife and I have
rewritten them so they are adaptable to the
short cast , narrow stage, no traveler and
general all round conditions.
In order to avoid conflict with Rudy Ross I
have eliminated all scenes using props , music,
sound effects, and extra girls. This brings my
list of scenes down to 11.
My wife, Tootsie Roll, does special novelty
strips . There are 20 different numbers in all,
naturally with appropriate wardrobe and props.
All of her numbers are prefaced with specially
written songs, and parodies. All of her numbers
are on tape. She uses patter through out her
number . She never says anything vulgar or ob-
jectionable to anyone . The show is censored by
the police every Friday morning . Rudy Ross
misses cues and plays her background music so
loud she cannot do her number properly.
STRAND ART THEATRE, INC. 675
So . . . in order to avoid conflict with Rudy
Ross she has eliminated all of her novelty num-
bers.
Furthermore Rudy Ross has an uncontrollable
temper , so violent it verges on insanity. He
loses his temper , flies into a rage at the most
innocent remark or action . He gets so violent
he takes his fist and punches holes in plaster
board walls . Rudy Ross on three separate occa-
sions threatened me and my wife with physical
violence . He has violently shoved me several
times . He has shouted an obscenity to my wife
while she was working on stage loud enough
for everyone in the theatre to hear it.
Rudy Ross's behavior has reached the point
that when he is in the back stage area , my wife
and I become so nervous and frightened that it
is exceedingly difficult to concentrate on our
work . As a result , the house manager ( Mr. Joel
Ross, also son of E. Ross owner ) and Bertram
Ross has confronted us on the quality of our
work . This was done ( the only time) in the
seventy fourth week of our engagement.
We tried to explain to them , as we did both
Mr. and Mrs . Edward Ross earlier , that Rudy
Ross frightens us and we begged them to
transfer him from his back stage duties to
another position in one of the many firms that
they own . We did not try to dictate , tell, or
boss them as to how they run their own busi-
ness but if their objective is the same as ours,
which is to have a good show at all times, we
can see no reason as to why they should refuse
our request as they have so many other busi-
ness enterprises in which they could place
Rudy Ross.
/s/ W. F. Tackett
Buddy O'Day-W. F.
Tackett
comic
/s/ Mrs. J. Tackett
Tootsie Roll-Mrs. J.
Tackett
dancer and talking
woman
After Stephens received this written grievance he
discussed the Tacketts ' problem again with Bert or
Joel. Then one evening Edward Ross telephoned
Stephens at his home and they discussed it. During
this conversation Edward Ross told Stephens that
neither the Union nor the employees was going to
tell him how to run his theatre . Stephens replied
that they had no intention of telling him how to run
his theatre, that "We wanted to have good working
conditions ." Ross gave Stephens to understand that
Rudy came before the performance , that he didn't
want employees to tell Rudy what to do , and that
he, Ross, and not the employees , was responsible
for what went on in the theatre.
Thereafter , on or about June 19, Stephens for-
warded a copy of the Tacketts ' two-page complaint
to Edward Ross, together with a covering letter
reading as follows:
Attached is a complaint recently received by
AGVA about working conditions at the Strand
Art Theatre.
As mentioned in our conversation I do not
rule on a complaint , but instead , refer it to the
Branch Executive Committee for their recom-
mended action.
You are welcome to appear before this
group concerning this complaint involving your
interests in show business.
On June 24 Ross replied to Stephens in writing as
follows:
Your letter of, June 19 , 1968; together with
several copies of a written complaint signed by,
Buddy O'Day and his wife , were received by
myself and various members of my family.
My primary reason for acknowledging your
letter-is not to dignify the contents of the
complaints there in-but, rather as an act of
courtesy to you.
It occurs to me, that Rudy Toss, ( sic) the sub-
ject of the complaints , has not worked back
stage for at least two ( 2) weeks prior to the
receipt of the letter . Why then?-was the com-
plaint ever made?
f have several grievances relative to many per-
formers who were engaged in our theatre.
However , I shall defer action for a future date.
I believe , rather than engage in criticism of
theatres , that are suppling [sic ] work to your
performers ; you should direct your actions and
diatribes toward theatres , that are unfair and .
operating "non-union."
In my opinion to repeat an old phrase , " It is in-
fantile to bite the hand that feeds your perfor-
mers," surely , there are many important and
pressing problems in your own organization,
that demand immediate action and should be
ameliorated.
2. The discharges
The first and only confrontation between Edward
Ross and Tackett after the former received the
complaint letter occurred on July 22, and it turned
out to be the Tacketts ' terminal interview.
Someone other than Rudy had been doing the im-
427-835 0 - 74 - 44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
portant backstage work for weeks and, insofar as
the record showed , all had been going well. On the
evening of July 22 the backstage man was missing
from the third show and Edward Ross had sent
Rudy back there to replace him. Rudy did not
speak to the Tacketts . Obviously concerned about
the reappearance of Rudy backstage , after that
show the Tacketts went to the office to talk to
someone about this and found themselves talking to
Edward Ross . This was Edward Ross' first ap-
pearance at the office since the previous
December , when he had been hit by an automobile.
Concerning this meeting the testimony of the
Tacketts and the Rosses was almost completely
contradictory.
The Tacketts testified that they entered the office
in the spirit of peace to inquire as to whether Rudy
was going to remain backstage and, if so , to see if
Bertram or Joel could arrange a friendly meeting
between them and Rudy so that they and Rudy
could shake hands and go to work harmoniously.
They testified that they discussed the matter before
going to the office and decided that they could not
"fight city hall " if Rudy was going to remain
backstage and that they entered to inquire, not to
complain . All of this seems credible to me, since
the Tacketts had had a 2-week vacation shortly be-
fore and had had adequate backstage support since
their return . I credit their testimony that at the
beginning Tackett asked Ross if Rudy was going to
remain backstage and Ross replied in the affirma-
tive. Since Ross had sent Rudy backstage on the
spur of the moment as a substitute , his reply that
Rudy was going to remain back there seems to have
been , and I so find , an intentional effort to provoke
Tackett , and it seems probable to me that his intent
bore fruit.
Edward Ross testified that Tackett said strongly
that Rudy had no right to be backstage , that he was
not supposed to be back there , and that Tackett
would not work with him . Ross' pretrial affidavit
said Tackett talked "belligerently " but did not say
Tackett refused to work with Rudy . Joel Ross, who
was present , testified that Tackett said that he was
not going to work with a crazy man backstage.
Edward Ross indicated strongly in this interview
that he would not discuss the substance of the
grievance with Tackett . Ross testified that he told
Tackett that the latter could not dictate to him who
would work backstage , that Rudy was his son, and
that Rudy was going to continue working back
there.
According to the credited testimony of the
Tacketts , Ross asked them why they went to
AGVA, said they were troublemakers, asked them
if they wanted to quit , and told them he was going
to get rid of them . He then ordered them out and
ushered them out of his office.
Edward Ross testified that during the interview
Tackett called him a "dirty Jew bastard " and said
he would take him before the NLRB and AGVA.
Tackett denied this epithet and said that one of his
grandmothers was Jewish and his father was "half
Jewish."
It seems probable to me that under the extreme
provocation of having their grievance rebuffed by
refusal even to discuss it , having their union affilia-
tion attacked , being called troublemakers, and
being all but discharged , that Tackett spontane-
ously applied to Ross the epithet Ross accused him
of.
The termination notices handed the Tacketts on
July 25 effective August 1 stated no reason for the
discharges . Signed by Dorothy Ross as president of
Respondent , they stated the renewal of the con-
tracts by signature of Bertram was signed by a
minor without her consent . At a later hearing by
AGVA for alleged breach of the Tacketts' con-
tracts, Mr. and Mrs . Ross asserted the position that
Bertram was a minor without authority to sign for
them , and one of them asserted that they had a
minor sign purposely so that they could "get out
of" the contracts.
Edward Ross sent Rudy Ross to Wichita , Kansas,
on August 1, 1968, and since then he has been
manager of the Vogue . Rudy testified that he and
his mother didn 't begin to "get along" until he was
in Wichita.
According to credited testimony of Steve
Stephens , AGVA's branch manager , a credible wit-
ness, although Bertram Ross telephoned him
(presumably after the Tacketts left) that they were
going to discontinue live shows at the Strand, they
still have live shows there but are not getting them
through AGVA ; the performers are not working
under AGVA contracts and the Rosses are not
doing business with AGVA.
3. Concluding findings
The Tacketts normally performed four shows a
day, 7 days a week, and appeared several times
each show . Backstage conditions , including the
proper handling and timing of the props , lights,
music, and wardrobe , were important conditions of
their employment, and a proper subject of a single
or a continuing grievance. Their grieving or com-
plaining over these working conditions was a pro-
tected union or concerted activity within the mean-
ing of Section 7 of the Act.
Although Bertram and Joel Ross were apparently
willing to listen to and consider the Tacketts' occa-
STRAND ART THEATRE, INC.
sional grievances about their working conditions
(and although Rudy had been temporarily removed
from backstage after discussions with Bert or Joel),
the record showed that Edward Ross was not, and
that he was hostile to the Union . Thus, prior to his
receipt of the Tacketts ' written complaint but after
Stephens had discussed its contents with Joel or
Bertram , Edward Ross called the union agent at his
home one night and told him , as has been seen
above, that the Union and the employees were not
going to tell him how to run his theatre, that Rudy
came before the performance , that he didn't want
employees to tell Rudy what to do, and that he and
not the employees was responsible for what went
on in the theatre . Thus, in replying to Stephens
after the latter had sent him the Tacketts ' June 10
written complaint , Ross wrote nothing about the
merits or demerits of the grievance and launched
into an attack on the Union . Thus, in the terminal
interview Ross intentionally provoked the Tacketts
but refused to discuss the merits of their grievance,
and he asked the Tacketts why they went to
AGVA. And finally , after the Tacketts left, the
Strand ceased doing business with AGVA.
On the witness stand Ross admitted that the
Tacketts ' June 10 complaint letter was one of his
reasons for discharging them and that it "could be"
the main reason ; " it's as good a valid reason as any
that I know of." He quickly added that what
disturbed him was the "vilifying" of Rudy in the
letter . Of note in this connection is that in his reply
letter to Stephens he had said nothing about any
vilifications in the Tacketts ' letter and on July 22
he said nothing like that to the Tacketts.
Ross had received the June 10 written complaint
on or about June 20 . If he was going to discharge
the Tacketts for vilifying Rudy in the complaint, no
reason appears as to why he waited over a month to
do so . In his affidavit given in February 1969, over
6 months after the discharge , Ross stated, "The
reason that we terminated the Tacketts was
because they were there too long ." He, said nothing
about terminating them because they vilified Rudy.
Nor did Bertram testify that "vilification" had
anything to do with the discharges . Under these cir-
cumstances and upon the preponderance of the
credible evidence I believe and find that alleged
"vilification " of Rudy was not an important
reason for the discharges but was an idea lately
arrived at and conceived as a buttress to the
defense.
On the witness stand Ross said that what he
meant by "there too long " in his affidavit was that
they had been there too long and Tackett was try-
ing to "take over ." The record established beyond
any question that Tackett was not trying to "take
over" anything in the theatre , but that he was
677
simply trying to achieve backstage working condi-
tions which would permit him and his wife to per-
form their acts appropriately well.
It is the Board 's experience that adamant posi-
tions sometimes melt or change as a result of col-
lective bargaining , including the discussion of
grievances . Had Ross been willing to discuss the
Tacketts' problem with them it was possible that
some adjustment of the situation might have come
about which would have been satisfactory to both
sides . The Tacketts were primarily interested in
having adequate backstage support for their per-
formance , not in having Rudy removed . If Mr. Ross
had been willing to negotiate with the Tacketts and
the Union on this grievance , and to let Rudy and
the Tacketts know that he was taking a personal in-
terest in backstage conditions and expected them to
improve, it is possible that such a result would have
occurred . A few days later Ross sent Rudy to
Wichita where he became manager of the Vogue,
so Ross must have had confidence in him. Such
confidence , conveyed to Rudy, might have im-
proved his performance backstage at the Strand.
Further, if, on July 22, Ross had told the Tacketts
he was thinking of sending Rudy to Wichita, or was
going to send Rudy to Wichita, this would have
solved their grievance and they would have con-
tinued working at the Strand.
Upon the preponderance of the evidence I find
and hold that Edward Ross refused at all times to
consider the Tacketts ' grievance in depth because
of his hostility toward AGVA and toward per-
mitting performers to discuss their working condi-
tions with him, and that these were also the reasons
he discharged them.
The Board has long held, with court approval,
that not every impropriety committed in the course
of Section 7 activity deprives the employee of the
protective mantle of the Act. See the discussion of
Trial Examiner Louis Libbin in Harding Glass of
Missouri, Inc., 158 NLRB 1366, 1372, and the
cases cited in footnote 8 (page 1373 ) of the Trial
Examiner 's Decision.
On the facts of this case I find and conclude that
nothing contained in the June 10 written grievance
or in the July 22 interview was so improper as to
forfeit the Act's protection . In their June 10 com-
plaint , written for the information of the union
agent to assist him in pressing their grievance with
management , and not intended to be forwarded to
the Rosses , the Tacketts wrote the truth as they saw
it, with no intent to vilify Rudy and motivated sole-
ly by a desire to protect their own performances
and professional standing . And the epithet Tackett
applied to Ross on July 22 was uttered spontane-
ously after the extreme provocations listed above.
678 DECISIONS OF NATIONAL
As the Tacketts' actions in presenting and
pressing their grievances were within the protection
of Section 7 of the Act, and as in discharging them
Ross was motivated , at least in part , by his hostility
to AGVA and towards discussing grievances with
performers , I find upon the preponderance of the
evidence in the entire record considered as a whole
that Respondent discharged the Tacketts in viola-
tion of Section 8(a)(3) and (1) of the Act. Their
discharge under these circumstances would neces-
sarily tend to discourage other members of AGVA
from seeking employment at the Strand, which
would necessarily tend to discourage membership
in AGVA by members and nonmembers.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with Respon-
dent's operations described in section I, above,
have a close, intimate , and substantial relation to
trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
I recommend the customary broad cease -and-de-
sist order and the affirmative relief conventionally
ordered in cases of this nature, where Respondent's
unfair labor practices were of a character which
struck at the roots of employee rights safeguarded
by the Act.
At the time of their discharge the current con-
tracts of the Tacketts had nearly 4 months to run.
They were on their third 26-week extension and
they had worked at the Strand for over a year and a
half. The record established that they were satisfac-
tory, even valued, employees, and that they were
given at least two half-yearly extensions after they
began to have trouble and to complain over
backstage working conditions. Nothing in the
record suggested that their tenure would not have
LABOR RELATIONS BOARD
continued indefinitely but for their discharge for
engaging in protected union and concerted activity.
Under these circumstances I recommend the custo-
mary reinstatement and backpay remedies, with
backpay running from the date of the discharge,
August 1, 1968, until the date of the offer of rein-
statement (less their net earnings during such
period), computed on a quarterly basis as
prescribed in F. W. Woolworth Company, 90 NLRB
289, with interest thereon at 6 percent as ascer-
tained by the formula adopted in Isis Plumbing &
Heating Co., 138 NLRB 716.
As provided in the Woolworth case, I recommend
further that Respondent make available to the
Board , upon request , payroll and other records in
order to facilitate the checking of the amounts of
backpay due.
Upon the basis of the foregoing findings of fact
and the entire record in the case, I make the follow-
ing:
CONCLUSIONS OF LAW
1. Strand Art Theatre, Inc., Ross Operating
Company, Lakeside Drive-In Theatre, Inc., and
Town Underground Theatre, are a single integrated
enterprise engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. American Guild of Variety Artists, AFL-CIO,
Kansas City Branch , is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and
tenure of employment of William F. Tackett and
Jerrolyn Tackett, thereby discouraging membership
in American Guild of Variety Artists, AFL-CIO,
Kansas City Branch , Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]